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Woolen r. Rockaieller, Executor.
that case was in any respect a parallel case with this; but whatever the facts in that case may have been, it has been long since impliedly overruled in respect to the doctrine it is now cited to maintain.
It is further insisted that, as the plaintiff did not prove title in Hollowell at the time he executed the mortgage upon which the decree of foreclosure was based, the evidence failed to make out a case for the plaintiff.
It is true, that in actions like this against a person other that the judgment defendant, the general rule is, that, in addition to proof of the judgment, execution,sale and sheriff's deed, the plaintiff must show title in the judgment defendant; but, where both parties claim under the judgment defendant, title in him is admitted, and need not be otherwise proven. The evidence was not conclusive on that point, but the fair inference from all the evidence was, that both parties claimed title under Hollowell, the judgment defendant.
The sheriff, in his return to the order of sale, read in evidence, stated, amongst other things, that he posted up notices of the sale in three of the most public places in Monroe township, of Madison county, but did not say that Monroe township was the township in which the real estate was situate.
It is contended, that, by reason of that omission, the return was fatally defective, and hence did not show a valid sale.
The law does not, however, favor the application of so strict a rule to returns made
sheriffs' sales. It is the policy of the law to uphold execution and judicial sales so far as can reasonably be done, and where a sheriff's return is silent as to any particular act he is required to perform in making a sale, the presumption is that the sheriff did his duty. Rorer on Judicial Sales, sections 14, 57 and 776 ; White v. Cronkhite, 35 Ind. 483; Talbott v. Hale, 72 Ind. 1.
It is further contended that the court erred in excluding the deed from Milliken to the defendant, if, for no other reason, because the averment of the second paragraph of the complaint necessarily brought that deed before the court.
Woolen v. Rockafeller, Executor.
The averment of the second paragraph of the complaint, thus relied on, was, in effect, that the defendant had no valid claim of title under the Milliken deed, and we are unable to see that the admissibility of that deed, when offered in evidence as proof of title, was in any manner promoted by such an averment.
As has been seen, the tax deed did not recite that Hollowell had no personal property from which the unpaid taxes assessed against him might have been collected. There was no proof, nor offer to prove, aliunde, that Hollowell had no such personal property. At the time, therefore, the Milliken deed was offered in evidence, the defendant had not shown, and had given no assurance of his intention or ability to show, a valid title in Milliken to any of the land included in the tax deed, or described in the complaint. Smith v. Kyler, 74 Ind. 575. No injury was consequently inflicted upon the defendant by the exclusion of the Milliken deed.
Whether that deed might not have been made legally admissible as evidence of title in the defendant to some of the land named in the complaint by proper preliminary assurances as to additional facts expected to be proven, is a question we need not now consider, as no such question is presented by the record.
It is still further contended that the Milliken deed ought to have been admitted, to show that the defendant had become
he assignee of, or subrogated to, the State's lien for taxes on some of the land claimed by the plaintiff, and hence entitled to a foreclosure of such lien on the land.
But no such question was presented to the court below, and nothing was reserved upon the proceedings below which presents such a question for our decision here. The tax deed and the Milliken deed were both offered in evidence to prove title in the defendant, and not to establish a right in him to a decree to enforce a tax lien on the land. Flinn v. Parsons, 60 Ind. 573; Duke v. Brown, 65 Ind. 25.
The judgment is affirmed, with costs.
Nipp et al. v. Diskey.
81 211 127 258
a note for the payment of money on a day fixed contains a stipulation
showing that he furnished logs and requested the payor to saw them. SAME.—A stipulation in a note that it may be paid in specific articles of
property or in work or labor is for the benefit of the payor, and he may, as he elects, pay either in property or labor, and if he make proper tender can compel the creditor to accept payment in the articles or work; but if lie fails to duly exercise his election, or make a proper tender when it is necessary, the creditor may enforce payment in money. From the Grant Circuit Court.
F. J. Hall, T. J. Newkirk, W. A. Bonham and W. H. Carroll, for appellants.
A. Steele and R. T. St. John, for appellee.
ELLIOTT, C. J.-Appellants were the plaintiffs below, and brought this action upon two promissory notes and a chattel mortgage executed by the appellee.
A verdict was returned for the appellee, and separate motions for a new trial were filed by the appellants. The only argument made in support of the appellant Bell's claim for a reversal is, that the verdict is contrary to the evidence. We find some evidence supporting the conclusion of the jury, and that requires us to decline to disturb it.
In arguing the questions presented upon the ruling denying Nipp's motion for a new trial, counsel discuss the evidence, but what we have said in reference to Bell's motion disposes of this point.
The appellant Nipp presents questions not presented by Bell, and we now proceed to consider them. The note owned by Nipp, and acquired by assignment from Bell, is in the usual form, but contains this additional provision: “The amount of this may be discharged at any time before its ma
Nipp et al. 2. Diskey.
turity, in sawing lumber at fifty cents per one hundred feet, the said payee to furnish logs out of which to saw said lumber.” The appellant Nipp asked the following instruction: “The note sued on in this case, calling for $1,211.23, owned by the plaintiff Nipp, contains a provision that the same may be discharged at any time before maturity, in sawing lumber at fifty cents per 100 feet, the payee to furnish logs out of which to saw said lumber. If it is shown that the payor, before the maturity of the note, kept himself ready to do said sawing, and even demanded logs for that purpose, and the plaintiff failed to furnish them, it would not be a discharge of the note, as the furnishing of the logs and the sawing of the lumber were mutual and concurrent acts, and according to the terms of the contract might have been so discharged, but if there was a failure of either party the note at once became payable in money.”
In criticising this instruction appellee's counsel say that it is erroneous because it assumes the existence of a fact. We do not think there is any force in this objection. It is proper for the court to construe written instruments, and to inform the jury of their legal meaning and effect. It is also proper for the court to state what stipulations are contained in a written contract, in cases where there is no controversy as to its execution, and no dispute as to what its language is.
We think the instruction was properly refused, for the reason that it declares that the note became payable in money, although the entire default was on the part of the appellant. The appellee was liable to pay in money only in the event that he failed or refused to saw logs into lumber when furnished to him for that purpose by the appellant. The former was not liable to an action for money until he had been put in default. The appellant could not, at his election, deprive the appellee of the benefit of the stipulation in the note. It would have been error to give the instruction as asked, and the court did right in refusing it.
The court, at the request of the appellee, gave the following
Nipp et al. 2. Diskey.
instruction : "If you find from the evidence that the defendant Diskey, before the note to Nipp became due, informed and notified Nipp that he was ready and willing to pay said note in sawing lumber, and that he, Diskey, wanted Nipp to bring on the logs, and if said notice was a sufficient time before the note fell due to have done such sawing by the time the note fell due, then the plaintiff Nipp can not recover on the note due him."
It is maintained by appellant's counsel that the stipulation in the note providing for payment in sawing lumber was for his benefit alone, and that he might waive or enforce it at pleasure. This position is not tenable. A stipulation providing that a note may be paid in specific articles of property, or in work and labor, is for the benefit of the payor. He may, if he elects, pay the note in property or labor, and, if he makes the proper tender, can compel the creditor to accept payment in the articles or work designated in the note.
If a debtor, having the right to elect to pay a note in services or property, fails to duly exercise his election, and make the proper
tender in cases where a tender is necessary, then the creditor may enforce payment in money. The creditor, however, can not elect to disregard the stipulation as to the mode of payment, and demand money in the first instance. His right to payment in money does not arise until the default of the debtor to perform, or offer to perform, the stipulation in the note as to the mode of payment.
Under the stipulation in the note, the appellee had a right to elect to pay the note by sawing lumber, at the price fixed by the contract. As the appellant was bound to furnish the logs out of which the lumber was to be sawed, no more could be done by the appellee than to keep himself prepared to perform the stipulation, and notify the former of his readiness to do the work, and request him to furnish the logs. The contract gave appellee a right to pay in the mode stipulated, and if he did all that the appellant would permit him to do, he can not be deemed to have been in default. Mason v. Toner, 6 Ind. 328; Parks v. Marshall, 10 Ind. 20; Duerson v. Bel